Language Rights

• Author: Robert J. Sharpe, Kent Roach
• Pages: 357-372

357

CHA PTER 16

LANGUAGE RIGHTS

The appropriate st atus of the French and English languages has been

an ongoing source of debate th roughout Canadian hi story, both in the

political and in the legal sphere. The Supreme Court has recognized

that minority language rights involve both the rights of individuals and

the rights of communities and that language rights must be interpreted

in the context of Canada’s history. The Court has commented:

First, t he members of the minorit y communities and their familie s,

in every prov ince and territory, must be given the opportunity to

achieve their personal aspirations. Second, on the collective level,

these langu age issues are related to the development and existence of

the Eng lish-spea king minority in Quebec and t he French-speaking

minorities el sewhere in Canada. They al so inevitably have an impact

on how Quebec’s French-speaking communit y perceives its future in

Canada, since that communit y, which is in the majority in Quebec, is

in the m inority in Canada , and even more so in North Amer ica as a

whole. To this picture must be added the serious diff‌iculties resultin g

from the r ate of as similation of French-spe aking m inority g roups

outside Q uebec, whos e cur rent language rights were acquired only

recently, at cons iderable ex pense and with gre at dif f‌iculty. Thus, i n

interpreting the se rights, the courts have a responsibility to reconcile

sometimes divergent interest s and priorities, and to be s ensitive to

the future of each language community. Our country’s social context,

demographics and history will therefore necessarily comprise the

THE CHARTER OF R IGHTS AND FR EEDOMS358

backdrop for the analysi s of language right s. Language rights cannot

be analys ed in the ab stract, wit hout regard for the hi storical context

of the recogn ition thereof or for t he concerns that the m anner in

which they are cur rently applied is meant to address.1

In other words, la nguage rights are both rights for individuals and for

collectivities and they are a crucial element of Canada’s complex social

contract. Minority language rights have been a part of Canada from the

start and t hey were reaff‌irmed and expanded in the Charter of Rights

and Freedoms for specif‌ic remedial purposes.

A. THE NATUR E OF LA NGUAGE RIGHTS

There is a range of options to protect ethnic communities, including

those who share a common language. One possibility is to prov ide a

degree of self-government for an ethnic or l anguage community, giv-

ing it the powers to preserve and promote a disti nct identity. In a fed-

eration, a language group may form the majority in a province while

representing a m inority in the countr y as a whole. Another option is

to provide specif‌ic rights that permit groups to use their language or

express their c ulture. Examples are separate-school rights, access to

broadcasting outlets, or guarantees t hat government services w ill be

provided in a certain language. Yet another device is protection against

discrimination on the basi s of language or culture, preventing the ma-

jority from disadvantaging the minority because of language or cul-

tural practice. As w ill be seen, all of these options h ave been re sorted

to in the Canadian constitution.

The territorial principle, adopted in countries such as Belgium and

Switzerland, leaves the determination of language rights to each province

or territorial unit. The result is l inguistic uniformity in most territorial

units. While Canada’s federal structure, with a francophone majority

in Quebec and anglophone majorities in t he ot her prov inces, contains

elements of the ter ritorial principle, important features of the Canadian

constitution see language as an aspect of the indiv idual’s personality,

which is to be respected wherever one lives in Canada. Even t hough

francophones are a smal l minorit y in most provinces, and anglophones

are a minority in Quebec, both groups are given constitutional rights

that limit the abilit y of provinces to impose ling uistic uniformit y.

1 Solski (Tutor of) v. Quebec (Attorney Ge neral), 2005 SCC 14 at para. 5 [Solski].